The quoted language comes directly from Scalia’s opinion in Smith. The full sentence is: ”It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” There thus seem to be 2 typical Scalia desiderata in tension with one another – the desire for clear rules and the desire that the laws have democratic warrant. In the quoted sentence, he seems to be suggesting that sending accommodation back to the legislature will have the advantage of getting the courts out of the business of balancing, which he hated, but of course RFRA mandates precisely such balancing, unless it is read instead to “make each conscience a law unto itself.”
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 22, 2016 3:20 PM To: Law Religion & Law List Subject: Re: Scalia's views of RFRA? I never read Smith that way — it was a straight up carte blanche to the legislative and executive branches provided the law was neutral and generally applicable — no weighing of competing interests involved. Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org "A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment." Albert Einstein On Nov 22, 2016, at 4:07 PM, Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: judges the task of “weigh[ing] the social importance of all laws against the centrality of all religious beliefs”(Smith) ________________________________
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